An application by ‘Etuate Lavulavu to strike out his prosecution, claiming it was an abuse of process, was struck out by the Lord Chief Justice on 19 May. Together with his wife, 'Akosita Lavulavu they will stand a re-trial on an amended indictment.

On 2 July, 2021 both were sentenced to six-years imprisonment each, with Mrs. Lavulavu having the last 12-months of her sentence suspended for two-years on conditions.

This was after they were convicted at the Supreme Court on three joint charges of obtaining money by false pretenses, which amounted to over $500,000 pa’anga from a private education provider, ‘Unuaki ‘o Tonga Royal Institute, which they founded.

On 11 October 2022, they were freed from prison by the Appeal Court after a successful appeal found their trial was unfair. However, the Appeal Court was satisfied there was sufficient evidence to support convictions and remitted their case for a retrial at the Supreme Court.

In this case, Lord Chief Justice Whitten KC in a written 51-page ruling refused Mr. Lavulavu's application to strike out his prosecution, at the Supreme Court in Nuku'alofa.

The Prosecution was then ordered to file and serve a summary of facts in regards to the amended indictment by 2 June this year. This is in preparation for the re-trial.

He said the retrial was listed to start before him on 8 May 2023, on an estimate of four-weeks.

Amended indictment

On 17 April this year, the Prosecution filed the amended indictment, which is the subject of this application.

Mr. Lavulavu by application then sought an order striking out or dismissing the prosecution against him on the grounds that:

1. (a) the amended indictment is an abuse of process;
2. (b) a retrial is inconsistent with clause 12 of the Constitution; an
3. (c) the Prosecution delayed in amending the indictment until close to the listed commencement of the retrial. This was opposed by the Prosecution.

On the other hand, Mrs. Lavulavu through her counsel was ready to proceed with the trial on the amended indictment.

The LCJ said relevantly, the amendments split the charges so that the first three counts are as against Mrs. Lavulavu and the second three counts are as against Mr. Lavulavu.

The particulars to the counts against both now include that they intended for the Ministry to act on the alleged false representations.

Count 3 specifies that Mrs. Lavulavu made that alleged representation 'through Mele Tovi'. The counts against Mr. Lavulavu now invoke s.8 of the Criminal Offences Act by alleging that he abetted Mrs Lavulavu in obtaining financial advantages by false pretences by indirectly encouraging her to do so, he said.

Mrs. Lavulavu has three counts of obtaining money by false pretences. While, Mr. Lavulavu face three counts of abetment to obtaining money by false pretences.

No abuse of process

Do the amendments represent “severe prejudice” to Mr. Lavulavu?

LCJ Whitten said in light of the above findings, the absence of any identified specific prejudice, and the deferral of the commencement of the retrial, he is not satisfied that the amendments to the indictment will cause Mr Lavulavu any prejudice or oppression such that he cannot receive a fair trial or that it would be unfair for him to be retried.

As for conclusion on abuse of process? For those reasons, and to sum up, I have arrived at the following conclusions in accordance with the relevant considerations provided by the authorities cited above.

The amendments to the indictment, and the Prosecution’s intended case for the retrial, do not constitute a new charge or case. They amount to no more than a precise and appropriate characterisation of the evidence in relation to Mr. Lavulavu’s alleged role and involvement in the same offence for which he was originally tried.

The amendments are consistent with the Crown’s ability to remould its case on the retrial, provided it retains the basic factual premises that underlie its case, which Mr Lutui (Director of Public Prosecutions) has assured the Court, the Prosecution intends to do.

The amendments do not constitute an attempt by the Prosecution to reconstruct or “patch up” its case for the retrial. The amendments do not represent a departure by the Prosecution from considered decisions competently made, he said.

Public confidence

 The LCJ said the charges are serious and there is a powerful public interest in ensuring that they are tried properly, fairly and according to law.

He said the amendments to the indictment do not constitute a deliberate or improper manipulation or misuse by the Prosecution of the criminal process so as to take unfair advantage of a technicality or Mr. Lavulavu.

"There is no suggestion that the Prosecution case suffers from some incurable vice, such that its case against Mr. Lavulavu is doomed to fail."

Mr. Lavulavu has not demonstrated any fundamental defect which goes to the conduct of the trial could relieve against its unfair consequences such as a direction for the Prosecution to file and serve a summary of facts in respect of the amended indictment.

The background, evidence, authorities and submissions presented on the application do not establish that Mr Lavulavu cannot receive a fair trial or that it would be unfair for him to be re-tried. Continuation of the proceedings will not involve unacceptable injustice, unfairness, or be so unfairly and unjustifiably oppressive as to constitute an abuse of process, he said.

"On the bases advanced by Mr. Lavulavu, to stay this prosecution would, in my view, diminish public confidence in the administration of justice. Accordingly, the application, based on alleged abuse of process, fails."

Mr Lavulavu’s application to strike out the prosecution against ;him as an abuse of process is refused. The Prosecution is to file and serve a summary of facts in respect of the amended indictment, ordered the LCJ.